Social Media’s Use In Employment Practices - Part III

Part III:
          Whether social
media use can cost you your job

There is a growing body of case law regarding adverse
employment actions taken by employers after the discovery of facts arising from
social media. Multiple courts have acknowledged that an employer’s use of
social media may be permissible in making a termination decision. But the key
issue for an employer is not the source of the information that has prompted
the adverse action, but how it came to learn the information and whether the
employees’ conduct, even if distasteful, is protected activity.

Two cases illustrate this point. In Jaszczyszyn v. Advantage
Health Physician Network, the court affirmed that the defendant company neither
retaliated against its employee, nor interfered with her rights under the
Family Medical Leave Act (FMLA). The company fired an employee for fraud
following the company’s investigation that included an examination of the
employee’s Facebook posts. The plaintiff had been on FMLA leave for a purported
serious medical issue that supposedly precluded her from working when fellow
co-workers saw Facebook pictures the plaintiff posted showing her at a local
festival. After other employees brought the pictures to management’s attention,
the company fired the employee for fraud.

By contrast, in Pier Sixty LLC v. Perez, the National Labor
Relations Board (NLRB) affirmed a decision that the employer violated the
National Labor Relations Act by firing an employee for an obscenity-laced
Facebook post toward a supervisor. The NLRB found that the employee’s post,
while offensive, was protected concerted activity because the employee’s
comments were directed at his supervisor’s asserted mistreatment of employees
and sought redress through the upcoming union election.

The Advantage Health decision demonstrates that where there
is no connection between the adverse action and protected employee activity, an
employee may be terminated. In contrast, the Pier Sixty decision shows that an
employee’s vulgar and offensive speech online is not a basis for termination if
it is accompanied by protected speech.

But employees are not entitled to post online with impunity.
In Karl Knauz Motors Inc., d/b/a Knauz BMN v. Becker, the NLRB upheld an
employee’s termination where the employee posted photos and comments online
making light of a serious accident at work involving the car dealership’s
decision to allow a customer’s underage child to sit in the driver’s seat. The
child then put the vehicle in motion and an accident occurred. The board found
that the employee’s postings were not protected activity and upheld his
termination.

Courts have also held that an employer may terminate an
employee for violations of the company’s social media policy, but the company
may expose itself to potential discrimination claims if the company does not
apply that policy consistently. For example, the court in Rodriguez v. Wal-Mart
Stores Inc. upheld a company’s termination of a manager for the manager’s
breach of the company’s social media policy. The manager had posted comments to
her employee’s Facebook page chastising the employee because the employee
posted photos showing the employee at a Fourth of July party when the employee
had called in sick. The manager violated the company’s social media policy by
publicly chastising the employee under her supervision rather than waiting for
the employee to return to work to discuss the manager’s work attendance
concerns.

The decision in Redford v. KTBS LLC shows the danger of
inconsistent application of a social media policy. There the court denied the
company’s summary judgment motion that a white male reporter’s sex and race
discrimination claims should be dismissed. The plaintiff was terminated for
violating the TV station’s social media policy for negatively commenting on a
viewer’s post on his Facebook page, while two female reporters, one white and
one African-American, received lesser discipline for similar actions.

Pointing to the inconsistent application of its policies,
the court held there were sufficient factual issues outstanding that precluded
granting the company’s summary judgment motion on both claims.

The key lessons concerning termination decisions predicated
upon social media are: a lack of pretext, consistent application of a uniform
policy and connections between the improper use of social media and the basis
for the adverse employment action.

Information found on social media cannot be used as a
pretext to fire an employee who is otherwise engaged in permissible activity.
Social media policies and violations of those policies should be applied in an
even and consistent manner to avoid allegations of discrimination. And
employers cannot use information discovered on social media to take adverse
action where the information also shows protected employee activity.

                                                                                                 *         *         *

The use of social media in employment practices, whether in
hiring, during an employee’s tenure at the company or in making termination
decisions, is best informed by traditional employment law concepts regarding
discrimination, harassment and retaliation. Employers should educate their
employees as to the company’s use of social media and ensure that the use of
social media comports with legitimate, nondiscriminatory objectives. Education
and awareness will help companies successfully navigate the current social
media challenges they confront and provide a flexible framework to apply to
future social media issues that are likely to arise.